CYIL 2011

THEORETICAL AND PRACTICAL IMPACT OF INTERNATIONAL CRIMINAL LAW… inter-State relations. On the other hand, State sovereignty, because of the existence of other States, cannot be absolute; it is automatically limited by the sovereignty of other States. Moreover, the concept of sovereignty has been shaped by other influences, one of which is presented in this part, i.e. the scope and exercise of State sovereignty in relation to the individual. One part of State sovereignty consists of prosecuting crimes on its own territory. 8 The territorial principle of jurisdiction, alongside with the active nationality principle of jurisdiction, has been considered as one basic ground for the criminal jurisdiction of a State. 9 However, that is not always sufficient since crime does not recognize State borders. Moreover, although the concept of State sovereignty had been absolutely confirmed by hundreds of years of development of international law, it was challenged during World War II, when voices calling for justice became stronger and stronger. Germany was not about to prosecute its own representatives, nevertheless justice needed to be done. Therefore a new development was triggered, i.e. international criminal law, the prosecution of individuals at the international level. 10 It in effect meant that the exercise of criminal jurisdiction was transferred to the international community, although only in relation to the leading Nazis. The other suspected war criminals were tried by national courts under Law No. 10 enacted by the Allied Control Council. Crimes are committed by individuals, not by abstract entities, as Nuremberg judge Jackson said that time. 11 However, apart from the claims of aliens against foreign States, this was the first time that an individual was successfully brought before a court at the international level. 12 Although the Nuremberg and Tokyo trials have been criticised as victors’ justice, their principles were unanimously adopted by a General Assembly Resolution. 13 Individual criminal responsibility, the non-applicability of a defence based on the claim of immunity of high officials, and the concept of command responsibility are examples of what was introduced to international law. A parallel development of international human rights law also took place. One could argue that States could have continued in the direction of international criminal responsibility of the individual rather than in the direction of international 8 Brown, B. S.: Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals, 23 Yale Journal of International Law 1998, pp. 383-436, p. 424 9 Hafner, G.: Die internationale Strafgerichtsbarkeit. In: Neuhold, H., Hummer, W., Schreuer, C.: Ősterreichisches Handbuch des Völlkerrechts, Band 1: Textteil , Wien : Manzsche Verlags – und Universitäts buchhandlung 2004, p. 533 10 Šturma, P.: Mezinárodní trestní soud a stíhaní zločinů podle mezinárodního práva . Praha: Karolinum 2002. 11 Nazi Conspiracy and Aggression, Opinion and Judgement, p. 60. The document is available [online] at http://www.loc.gov/rr/frd/Military_Law/pdf/NT_Nazi-opinion-judgment.pdf [last visit 25 June 2011]. 12 Apart from Peter von Hagenbach tried in 1474. See Hafner, G.: Sovereignty vs. Global Public Order: The Development of International Criminal Jurisdiction. In: Medzinárodný trestný súd na začiatku 21. storočia . Zborník z medzinárodnej konferencie, 27. september 2006, Bratislava, Slovenská spoloč nosť pre medzinárodné právo, p. 14. 13 UN GA Res. 95 (I) from 11 December 1946.

179